family lawyers warn pre-nups may be ignored

couples entering into a pre-nuptial agreement may run the risk of it not being worth the paper it’s written on. the warning comes in the wake of a recent queensland case (hoult & hoult [2011] famca 1023) which found that the wife’s lawyer had failed to provide her with the advice required under section 90g of the family law act.

The outcome meant that years later, the financial agreement they both signed nine days before their wedding was worthless.FLPA president Deborah Awyzio advised couples to ensure that both spouses use only experienced family lawyers and that they receive written advice on their financial agreement.

Ms Awyzio said there was potential for more financial agreements to be challenged, with some in the profession now choosing not to advise clients on financial agreements at all.

“Both parties in the relationship should ensure their lawyer provides written advice to prove in years to come, if necessary, that the right advice was given under the Act,” she said.

“Couples should also ensure that it is recorded in the agreement that each party has received written advice from their lawyer. “

Family lawyers warn pre-nups may be ignored.

Under the current law, each advising lawyer must sign a Certificate of Independent Legal Advice when advising a client on a financial agreement.

Each certificate states that the lawyer has provided their client with independent legal advice.

In the Hoult case, the wife’s lawyer had no record of this advice being given and when the agreement was challenged years later there was no evidence for the courts to consider.

Ms Awyzio said it was difficult for couples to know and control who was giving legal advice to their spouse and whether they were competent in family law.

“One spouse could obtain advice from an experienced family lawyer who complies with all of the legal requirements for the financial agreement to be binding,” she said.

“But if the other spouse does not obtain compliant advice, the agreement may be set aside in years to come.”

Ms Awyzio said couples should check their lawyer’s credentials to ensure they specialised in family law Bribane family lawyers